State Net Capitol Journal: Lack of Progress on Immigration Reform Stymies States

By Lou Cannon

With congressional efforts to repair a broken immigration system stalled by election-year politics, the Obama administration is deporting unauthorized immigrants at record rates and in the process putting pressure on the states.

In five years in office, President Obama has deported nearly 2 million of these immigrants, more than any other president, and as many as President George W. Bush did in eight years. The pace of deportations has angered and frightened Latinos, who according to a Pew Research poll now believe that the threat of deportation takes precedence over establishing a pathway to U.S. citizenship.

Janet Murguia, who heads the National Council of La Raza, calls Obama the "deporter in chief" and says the deportations have left "a wake of devastation for families across America." Meeting with restive Latino leaders recently in the White House, Obama agreed that deportation policies should be more humane and said he had ordered a review of his administration's law enforcement policies.

Latino leaders are equally exasperated with the Republican-controlled House of Representatives, which has spurned a bipartisan immigration measure that the Senate passed nine months ago. Rejecting the Senate's omnibus approach, the House instead came up with five separate bills but has not acted on any of them.

Congress has not passed comprehensive immigration legislation since the Immigration Reform and Control Act of 1986, which President Ronald Reagan supported and signed into law. That measure granted permanent residence to 2.7 million unauthorized immigrants living in the United States; the actual number may be higher since some of these immigrants later brought in family members.

Subsequent attempts at immigration reform have run aground in Congress despite White House support for a comprehensive bill from George W. Bush and Obama. Federal inaction has left immigration decisions to the states, which after initially marching off in different directions have become more responsive than either the hyperactive White House or the gridlocked Congress to the needs of unauthorized immigrants

Fifteen states extend in-state tuition benefits to unauthorized immigrant students. (New York had been expected to become the 16th such state but in a surprise move, the state Senate on Monday rejected the proposal by a single vote.) Eleven states issue driver's licenses to unauthorized residents. California last year allowed unauthorized immigrants to practice law. Partly in response to the wave of deportations, 11 states and more than 100 local governments have enacted sanctuary policies preventing state and local law enforcement from inquiring about immigration status or cooperating with federal immigration authorities except in cases of major crimes.

For all they've done, however, states are limited by the U.S. Constitution, which in Article I grants primacy to the federal government on immigration policy. Several states have appealed for federal action that would allow them to bring in immigrants with technical skills or agricultural workers to harvest crops.

"The level of frustration in the states is off the charts," said Ann Morse, program director of the Immigrant Policy Project for the National Council of State Legislatures.

Morse said that polls show the public is ahead of Congress on immigration reform and that state legislatures are responding to these sentiments to the degree they are permitted to do so by the Constitution and Supreme Court decisions. Forty-four states and the District of Columbia last year passed 184 laws and 253 resolutions relating to immigration, a 64 per cent increase from 2012.

Results of the latest Pew Research Poll, released on February 27, bear Morse out. Seventy-three percent of those surveyed said that a way should be found for the estimated 11.5 million unauthorized immigrants now in the United States to remain here. Only 46 percent, however, said these immigrants should be able to apply for U.S. citizenship. Poll respondents were equally divided in their opinions about the Obama administration's deportation policies.

These deportations have imposed added costs on the states. According to Angela Kelley of the Center for American Progress, more than 5,000 American children are in foster homes because one or both of their parents have been deported. The fiscal costs are born largely by the states.

But the economic outlays by the states pale in comparison to the human cost of the mass deportations, often for trivial offenses. The Economist, highly critical of what it called the "Obama deportation machine," gave the example of Octavio Nava Cabrera, who was pulled over by police in Illinois in April 2013 for going through a stop sign. He had arrived in the state in 1986, at the age of 13, and most of his family still lives there. Nava Cabrera was imprisoned for seven months and then deported, leaving a son behind. He now sleeps on the floor of a friend's apartment in Mexico City.

"The deportation machine costs more than all other areas of federal criminal law enforcement combined," the Economist editorialized. "It tears families apart and impoverishes America."

The president's defense is that he has a duty to enforce the immigration laws as written. The Economist called this "a cop-out," noting that Obama in 2011 acted on his own without Congressional approval in delaying deportation of immigrants who had arrived in the United States as children. Obama would undoubtedly draw fire from conservatives if he unilaterally slowed other deportations, but he has not hesitated to use executive power on issues he gives a high priority, most notably delaying several sections of the Affordable Care Act.

Republicans who are tempted to throw stones at the dubious deportation practices of the administration might first want to consider getting their own act together. The GOP has been playing politics with immigration reform, which as Sen. John Cornyn (R-Texas) has acknowledged, is of no particular help to Republicans in the 2014 midterm elections but may be essential in advance of the 2016 presidential election.

Here's why: Republicans are losing the battle for the votes of Latinos, a rapidly expanding segment of the electorate. Obama beat John McCain 2-1 among Latino voters in 2008; he expanded this advantage to 3-1 when defeating Mitt Romney in 2012. Unless the next Republican presidential nominee reduces this gap, it's hard to see how the GOP can win the White House. But it's a different story in midterm elections, where the electorate is older and whiter. Republicans are favored to hold the House this year and are considered at least an even bet to win the six seats necessary to take control of the U.S. Senate. In 10 of 11 of the closest Senate races, the Latino population is less than the national average.

But Republicans are fooling themselves if they think immigration reform will be easier to deal with after the election. The issue, thorny and complex, cuts across party lines. While there is public agreement that reform is needed, there are major regional and ideological differences on what should be required of immigrants who seek a path to citizenship as well as differences on the issues of border security and a guest-worker program. Trying to obtain consensus with a lame duck Democratic president and a Congress possibly controlled by the Republican opposition might be even more difficult than passing an immigration reform bill in an election year.

Both Congress and the president, however, owe more to their constituents than they have delivered up to now. The states have pretty much done what they can. Millions of unauthorized immigrants are in limbo. As NCSL's Ann Morse might put it, it's time for the politicians in Washington to catch up to the American people.

The above article is provided by the State Net Capitol Journal. State Net is the nation's leading source of state legislative and regulatory content for all states within the United States. State Net daily monitors every bill in all 50 states, the District of Columbia and the United States Congress - as well as every state agency regulation. Virtually all of the information about individual bills and their progress through legislatures is online within 24 hours of public availability.